102. There is debate about whether the source of criminal liability for such an attack is the law of armed conflict or domestic criminal law. Because military commissions deal with IHL violations, the U.S.

position has been that violations committed by unprivileged belligerents are war crimes. See, e.g., United States v. Khadr (Mil. Com. Oct. 25, 2010) (Plea Agreement), ROBERT CHESNEY’S NATIONAL SECURITY LAW LISTSERVE ARCHIVE (Oct. 25, 2010, 6:01 PM), http://jnslp.wordpress.com/2010/10/25/ nationalsecuritylaw-united-states-v-khadr-mil-com-oct-25-2010-plea-agreement (describing Omar Khadr’s agreement to plead guilty to, inter alia, “murder in violation of the law of war [and] attempted murder in violation of the law of war”). Alternatively Khadr could have been tried for murder under the domestic laws and procedures of either the United States or Afghanistan.

CROSS 991, 1031–33 (2009), available at http://www.icrc.org/eng/assets/files/other/irrc-872-reportsdocuments.pdf [hereinafter INTERPRETIVE GUIDANCE]. It should be noted that the ICRC document does TEXAS INTERNATIONAL LAW JOURNAL Volume 47, Issue 2 2012] DRONES AND THE BOUNDARIES OF THE BATTLEFIELD 311 planting a bomb as part of an attack are examples of direct participation that result in a temporary forfeiture of immunity for such time as the civilian continues the participation. After putting the gun down and disengaging from the attack, the civilian regains immunity.

The more permanent forfeiture of civilian immunity occurs when a civilian takes on a “continuous combat function” within an organized armed group of a nonstate actor. The International Committee of the Red Cross’s Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law states that “individuals whose continuous function involves the preparation, execution, or command of acts or operations amounting to direct participation in hostilities assume a continuous combat function.”108 This classification is designed to deal with the “farmer by day, fighter by night” tactic that a number of organized armed terrorist groups have employed to retain their civilian immunity from attack for as long as possible.109 The Israeli Supreme Court confronted this tactic in its 2006 opinion on targeted killings.110 While the Court reaffirmed the “for such time as” language related to DPH, recognizing that forfeiture of immunity was not generally intended to be continuous, it did indicate that those who organize, plan, and direct operations were legitimately targetable on a continuous basis because of the continuous nature of their participation.111 Continuous combat functionaries can only reacquire their civilian immunity by disavowing membership in the organized armed group and ceasing any operations with that group.112 IHL classifies individuals in this way in order to better achieve its goals. One of its principal goals is to spare the civilian population and members of the military that have surrendered or are hors de combat from the ravages of warfare.113 To this end it insists on proportionality and military necessity for all attacks, it requires the not have the force of law and can only become customary international law if its parameters are accepted by a number of states. Because military reaction to the Interpretive Guidance has contended that the definitions offered are too narrow (i.e., that the ICRC considers that fewer people and fewer actions constitute direct participation in hostilities than the military might), the Interpretive Guidance should be viewed as a baseline description of behavior that inarguably constitutes direct participation in hostilities while the actual state of the law remains less clear. See, e.g., W. Hays Parks, Part IX of the ICRC “Direct Participation in Hostilities” Study: No Mandate, No Expertise, and Legally Incorrect, 42 N.Y.U. INT’L L. & POL. 769 (2010) (criticizing the ICRC’s approach to direct participation in hostilities in Part IX of the Interpretive Guidance).

108. INTERPRETATIVE GUIDANCE, supra note 107, at 1007. It should be noted that the level of involvement with an organized armed group necessary to trigger continuous combat function (CCF) status is much greater than that required to trigger domestic criminal liability for the material support of terrorism. Hence the use of military force against those who have forfeited their immunity by acquiring CCF status would not significantly diminish the extensive role that law enforcement continues to play in the conflict with terrorist organizations like al-Qaeda.

109. Id. at 993.

110. HCJ 769/02 The Public Committee Against Torture in Israel v. Israel 53(4) PD 459 [2006], available at http://www.icj.org/IMG/Israel-Targetedkilling.pdf.

113. See Philip Spoerri, Dir. of Int’l Law, ICRC, The Geneva Conventions of 1949: Origins and Current Significance, Address at Ceremony to Celebrate the 60th Anniversary of the Geneva Conventions (Dec. 8, 2009), http://www.icrc.org/eng/resources/documents/statement/geneva-conventions-statementhtm (asserting that the Geneva Conventions contain “the essential rules protecting persons who are not or no longer taking a direct part in hostilities”).

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acceptance of surrender, it ties the availability of the combatant’s privilege to organizational respect for IHL, and it removes civilian immunity from those participating in an armed conflict either temporarily for such time as they directly participate in hostilities or more permanently for those who perform a continuous combat function. IHL rewards organizations that enforce the laws of war by conferring the combatants’ privilege on members of those organizations. At the same time it discourages organizations like al-Qaeda that target civilians and blend in with the civilian population, thereby placing the civilian population at greater risk, by denying them the combatants’ privilege and removing civilian immunity from its members.

C. Applying Strict Geographical Limits on the Scope of IHL to Transnational Armed Conflicts Rewards Groups like Al-Qaeda The legal support for applying strict geographical limitations on the scope of IHL to all non-international armed conflicts, rather than just internal civil wars, is based upon a misapplication of the Tadic test. As explained earlier, consideration of the Tadic factors makes sense in internal conflicts and civil wars where the violence is often episodic and geographically concentrated in one area of the country.114 Broadly applying the laws of war throughout a nation during a time of rebellion is often unnecessary and likely to lead to improper deprivations of life and liberty, which has led courts to resist such sweeping applications of the laws of war.115 However, applying the Tadic factors to determine whether IHL applies to a transnational armed conflict within a given geographical area is nonsensical.

The existence of an armed conflict between, for example, al-Qaeda and the United States, or between Hezbollah and Israel, should be based upon the degree of violence exchanged between those two parties, not on the level of violence that exists between al-Qaeda and the nation of Afghanistan where it resides, or between Hezbollah and Lebanon where it is based. Yet it is this latter test that is being proposed by the ACLU and commentators supporting strict geographical limitations on the scope of IHL.116 Such an application of the Tadic factors to determine whether IHL applies in a given geographical area to transnational armed conflicts confers a tremendous strategic advantage upon the very same organizations that IHL otherwise strongly disfavors. By limiting IHL to territory on which the threshold of violence for an armed conflict is currently occurring, IHL would effectively create sanctuaries for terrorist organizations in any state not currently involved in a domestic insurgency in which law enforcement is known to be ineffective. Nations such as Yemen,117

114. See discussion supra Part II.A.

115. See, e.g., Ex parte Milligan, 71 U.S. 2, 4 (1866) (requiring that even during time of rebellion civilian courts be utilized instead of military commissions in geographical areas where the courts were functioning).

116. See supra notes 87–91 and accompanying text.

117. The recent instability in Yemen has probably now reached the threshold necessary to be considered an internal armed conflict, but it had not done so at the time the United States began targeting al-Aulaqi on Yemeni territory. SUSAN BREAU, MARIE ARONSSON & RACHEL JOYCE, DISCUSSION

PAPER 2: DRONE ATTACKS, INTERNATIONAL LAW, AND THE RECORDING OF CIVILIAN CASUALTIES OF

TEXAS INTERNATIONAL LAW JOURNAL Volume 47, Issue 2 2012] DRONES AND THE BOUNDARIES OF THE BATTLEFIELD 313 Somalia, Sudan, and the FATA-area of Pakistan, in which law enforcement actions against organizations like al-Qaeda are either ineffective or intentionally not pursued, would become safe havens if IHL were not applied there.118 Al-Qaeda members fulfilling a continuous combat function could effectively reacquire their civilian immunity by crossing an international boundary rather than being required to disavow al-Qaeda, IHL’s preferred result.

This limitation on IHL’s scope in transnational armed conflicts would effectively cede the initiative119 in a conflict between a state actor that abides by IHL and a non-state terrorist organization, which IHL disfavors in every other way because of its conduct during an armed conflict, to the terrorist organization.

Members of the disfavored terrorist organization would be able to remain in these safe areas beyond the reach of law enforcement and immune from any attack that employed the tools of armed conflict, while they continued training, recruiting, and planning their next attack. They alone would be allowed to decide the next battlefield’s location, whether it is New York, London, Madrid, Washington, D.C., Mumbai, Detroit, or Bali, and when the next confrontation would take place. IHL should not be read to privilege such a group that it actively disfavors in so many other ways. Employing neutrality law to determine IHL’s scope and the boundaries of the battlefield in transnational armed conflicts is the best way of avoiding such an anomalous interpretation of IHL.120 Significantly, neutrality law (or something very much like it) has already been employed in the conflict between the United States and al-Qaeda. After the attacks of September 11, Afghanistan was put to much the same choice as Uruguay was in 1939:121 Become an ally of the United States in the conflict with al-Qaeda and allow the use of force against al-Qaeda on Afghan territory. Maintain neutrality in the conflict between the United States and al-Qaeda by prohibiting U.S. action against al-Qaeda in Afghanistan while ensuring that al-Qaeda leaves Afghanistan and does

119. The “initiative” in an armed conflict is the ability to decide when, where and how that conflict is conducted. Every officer and senior non-commissioned officer is taught the value of gaining and maintaining the initiative at both the tactical and the strategic level, because determining when, where, and how a conflict is conducted confers a tremendous advantage on the side that holds the initiative. See U.S. DEP’T OF ARMY, FIELD MANUAL 3-0, OPERATIONS, at 3-11 (2008) (“All Army operations aim to seize, retain, and exploit the initiative and achieve decisive results. Operational initiative is setting or dictating the terms of action throughout an operation.”).

120. Resolving the question of where IHL applies in transnational armed conflicts should not be interpreted as definitively determining that drone strikes are legal in Pakistan and Yemen. The issues of whether an armed conflict does indeed exist between the United States and al-Qaeda, whether AQAP is sufficiently related to al-Qaeda to be considered part of that armed conflict, whether those nations have properly assented to the use of force on their territory, or whether the predicate requirements for the employment of preemptive self-defense are met might all be the basis for questioning the use of drones outside Afghanistan. However, the mere fact that drones are being employed outside Afghanistan should not be viewed as a violation of international law.

september11 (describing the diplomatic situation between Afghanistan and the United States just after the attacks of September 11, 2001).

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not use Afghan territory as a sanctuary. Or, become an enemy of the United States by refusing to uphold its duties as a neutral nation by allowing al-Qaeda to use Afghan territory as a sanctuary.122 Afghanistan chose the third option and the United States and its NATO allies used force against both Afghan and al-Qaeda forces in Afghanistan with broad international support.123

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